What must the Police Tell Me upon Arrest?
Section 10(b) of the Canadian Charter of Rights and Freedoms fulfills its purpose in two
ways. First, it requires that the detainee
be advised of his right to counsel. This
is called the informational component.
Second, it requires that the detainee be
given an opportunity to exercise his right to consult counsel. This is called the implementational component.
In today’s blog entry, I discuss the informational component of the section
10(b) Charter right. Or more simply:
what must the police tell you upon arrest/detention?
Canadian Charter of Rights
and Freedoms
10. Everyone has the right on arrest or detention
a.
to be informed promptly of the reasons therefor;
b.
to retain and instruct counsel without delay and to be informed of that right.
Overview of the 10(b) right
The Supreme Court of Canada has recognized that
the purpose of the right to retain and instruct counsel guaranteed by section
10(b) of the Charter is “to allow the detainee not only to be informed
of his rights and obligations under the law but, equally if not more important,
to obtain advice as to how to exercise those rights”.
R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1
S.C.R. 1233 at 1242-43. See also R. v.
Taylor, 2014 SCC 50 (CanLII), [2014] 2 S.C.R. 495 at para. 21.
A person
who is detained or arrested is, “in immediate need of legal advice in order to
protect his or her right against self-incrimination and to assist him or her in
regaining his or her liberty.” The assistance of counsel helps to ensure that
those who are in custody, and therefore in legal jeopardy, are positioned to
make a voluntary and informed decision whether or not to speak, or otherwise
cooperate, with the police.
R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2
S.C.R. 310 at para. 25; R. v. Willier, [2010] S.C.R. 429 at para. 27.
The rights created by s.10 (b) attach immediately
upon detention, subject to legitimate concerns for officer or public safety.
R. v.
Suberu, [2009] 2 SCR 460, 2009 SCC 33 (CanLII) at para 2, 42.
The Standard Police Script
It is
the usual practice of police upon the arrest or detention of an individual to
inform the individual of his/her rights by reading those rights from a
laminated card. This is generally
prudent, as if there is a question as to what was conveyed to the detainee, the
content of the card can be put in as evidence and the officer can give evidence
that she read verbatim off it (assuming she did). Of course, that practice is only as good as
what is written on the card, which may be under-inclusive or confusing. In my experience, the content of such cards
changes subtly depending upon jurisdiction of the police force.
Below I set out a typical script that a police
officer would use to inform a detainee of her right to retain and instruct
counsel, along with the rationale for each component of that script.
Standard Script for
Police Officers
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Rationale
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I am arresting you for
[name of offence(s)].
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The right conferred by
s. 10 (a) of the Charter gives rise to a corresponding duty on the police to
inform a detainee of all of the reasons for his or her arrest or detention.
R. v. Borden (1994), 1994 CanLII 63 (SCC), 92 C.C.C.(3d) 404 (S.C.C.).
Given the necessary
interaction between s.10(a) and s.10(b) of the Charter and given that s.10(b)
must be complied with “immediately” with upon detention so too must s.10(a).
See for instance R. v. Spiry, 2010 ABPC 61 (CanLII) at para 32.
The duty to inform a
person of the reasons for his or her arrest or detention is founded on two
principles: (1) a person is not obliged to submit to an arrest or detention
if he or she does not know the reason for it, and (2) the right to counsel
can be exercised in a meaningful way only if the person knows the extent of
his or her jeopardy.
R. v. Evans, [1991] 1
SCR 869, 1991 CanLII 98 (SCC) at para 43.
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You have the right to
retain and instruct counsel without delay.
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Immediately upon detention, the detainee has the right to be informed of
the right to retain and instruct counsel.
See for instance R. v. Suberu, [2009] 2 SCR
460, 2009 SCC 33 (CanLII)
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You have the right to
telephone any lawyer you wish
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The Supreme Court
of Canada has interpreted the right to retain and instruct counsel,
guaranteed by section 10(b) of the Charter, as including a concomitant
right to consult a lawyer of one’s choosing.
R. v. Ross, [1989] 1 SCR 3, 1989 CanLII 134
(SCC); R. v. Willier, [2010] 2 SCR 429, 2010 SCC 37 (CanLII).
As a mistaken
belief on the part of the detainee that she is limited in her choice of
lawyers to contact may affect her decision to contact counsel at that
critical juncture, it makes sense that this aspect of the right must be expressly
communicated to the accused.
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If you are charged with
an offence, you may apply to the Ontario Legal Aid Plan for assistance.
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The Existence of Brydges
Duty Counsel” and Legal Aid
There is a duty on
police to inform a detainee of the existence of duty counsel and the ability to
apply for Legal Aid.
R. v. Brydges, 1990
CanLII 123 (SCC)
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You also have the right
to free and immediate legal advice from duty counsel by making free telephone
calls to [toll-free phone number(s)] during business hours and [toll-free
phone number(s)] during non-business hours.
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The Availability of Free immediate preliminary legal advice
“A detainee is entitled under the informational component of 10(b) of
the Charter to be advised of whatever system for free, preliminary legal
advice exists in the jurisdiction and how such advice can be accessed (e.g.
by calling a 1-800 number, or being provided with a list of telephone numbers
for lawyers acting as duty counsel.”
R. v. Bartle, 1994
CanLII 64 (SCC)
Toll-free number
If there is in existence a 24-hour duty counsel service which can be
accessed by dialing a toll-free
number, as there is in Ontario, this must be communicated to all
detainees as part of the standard s. 10(b) caution delivered by police.
R. v. Bartle; see
also R. v. Prosper, per Lamer C.J.
The police must provide an arrested or detained suspect with the
toll-free number at the moment when he or she wishes to take advantage of the
right to contact the 24-hour duty counsel service.
If a detained or arrested suspect has been fully informed of his or her
rights under section 10(b), and knowingly declines to pursue the opportunity
to contact counsel, then it is clearly not necessary for the police to
provide the specific toll-free number that will connect him or her with duty counsel.
See for instance R. v. Baldwin, 2016 ONCJ 589 (CanLII), per Kenkel J., where
the court held that the failure of the officer to read out the digits of the
1-800 number when advising the accused of
his right to counsel (in circumstances where the officer had immediately
told the accused that the police could arrange for him to call a free lawyer,
and where the accused had declined) did not breach s.10(b) breach. The officer explained the right to counsel
advice in simple terms
that were plainly understood by the accused.
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Do you understand?
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When considering whether there has been a breach of s. 10(a) of the
Charter, it is the substance of what the accused can reasonably be supposed
to have understood, rather than the formalism of the precise words used,
which must govern. The question is
whether what the accused was told, viewed reasonably in all the
circumstances of the case, was sufficient to permit him to make a reasonable
decision to decline to submit to arrest, or alternatively, to undermine his right
to counsel under s. 10(b).
R. v. Evans, [1991] 1
SCR 869, 1991 CanLII 98 (SCC)
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Do you wish to call a
lawyer?
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The implementational duties on police are not triggered until the detainee indicates his desire to exercise his right to counsel.
See R. v. Baig [1987] 2 S.C.R. 537 |
I wish to give you the
following warning: You need not say anything. You have nothing to hope from
any promise or favour and nothing to fear from any threat whether or not you
say anything. Anything you do or say may be used as evidence.
Do you understand?
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Caution
This warning is not constitutionally-mandated, however police would be
wise to provide it the event that the voluntariness of any statement made by
the detainee to a person in authority is challenged.
In evaluating the voluntariness of a confession, it is commonly
understood that the presence or absence of a caution is only one factor to be
taken into account with all the other circumstances.
Boudreau v. R., [1949]
S.C.R. 262, 7 C.R. 427 (S.C.C.).
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I wish to give you the
following warning: You must clearly understand that anything said to you
previously should not influence you or make you feel compelled to say
anything at this time. Whatever you felt influenced or compelled to say
earlier, you are now not obliged to repeat, nor are you obliged to say anything
further, but whatever you do say may be given as evidence.
Do you understand?
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Secondary Police Caution
This warning is not constitutionally-mandated; but again, police would be
wise to provide it.
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Additional informational
obligations
Prosper Warning
An additional informational obligation on police
will be triggered once a detainee, who has previously asserted the right to
counsel, indicates that he or she has changed his or her mind and no longer
wants legal advice. At this point, police will be required to tell the detainee
of his or her right to a reasonable opportunity to contact a lawyer and of the
obligation on the part of the police during this time not to take any
statements or require the detainee to participate in any potentially
incriminating process until he or she has had this opportunity.
Waiver of 10(b)Rights
Although detainees can waive their s.10(b) rights,
valid waivers of the informational component of s.10(b) will be rare and waiver
requires clear and unequivocal that the person is waiving the procedural
safeguard and is doing so with full knowledge of the rights the procedure was
enacted to protect.
R. v. Bartle; R. v. Korponay v. AG. Canada
Change
in Legal Jeopardy
Police
have the duty to advise a suspect of the right to counsel where there is a
fundamental and discrete change in the purpose of an investigation which
involves a different and unrelated offence or a significantly more serious
offence than that contemplated at the time of the original instruction of the right
to counsel.
Evans;
R. v. Burlingham
If Reason for Detention is
different from Subject Matter police intend to address
The police also have a
duty under s.10 (a), if the reason for the detention is different from the
subject-matter that the police intend to address, to inform the detainee of
both the reasons for detention and the subject-matter that the police intend to
address.
R. v. Sawatsky (1997),
1997 CanLII 511 (ON CA), 118 C.C.C.(3d) 17 (Ont.C.A.), at para. 29.
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